In 2013-14 three appellate courts held that Rule 26(b)(3) does not provide presumptive protection for all testifying expert materials as trial preparation materials. In the last of these, Republic of Ecuador v. MacKay, _____ F. 3d ______ (9th Cir. 2014), 2014 WL 341060 the plaintiff sought file materials of an expert retained by Chevron in ongoing litigation in Ecuador. Chevron argued on appeal that the plain language of Rule 26(b)(3) generally protects expert materials as trial preparation materials prepared “by or for” a party or a parties representative. It contended that expert materials such as emails with other experts, notes made from time-to-time, etc. were protected by the Rule. The crux of its argument was that the Rule provides presumptive protection for all testifying expert materials because they are necessarily prepared “by or for” a party or its representative.
The Court of Appeals declined and said:
“We conclude that Rule 26(b)(3) does not provide presumptive protection for all testifying expert materials as trial preparation materials. The 2010 amendments did not fundamentally restructure Rule 26 to do so. Our conclusion is fatal to Chevron’s argument. Accordingly, we independently arrive at the same result reached by our sister circuits. See Hinchee, 2013 WL 6655490, at *1; Bjorkman, 735 F. 3d at 1180. As Chevron has forsworn any challenge to the district courts’ specific assessments of the various categories of documents in dispute, we also do not reach those aspects of the district courts’ decisions.”
In the Hinchee case referred to above the court ordered production of the expert’s personal notes for his own use and email communications between the expert and a group of non-attorneys consisting primarily of other Chevron experts. The court held that protection under the Rule was afforded only to attorney core opinion work-product.